Calgary family lawyer Charles Fair discusses this hot parenting topic.
Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.
Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.
WATCH: Introduction to Practice Notes in Family Court
Vanessa Farkas-Brahmakshatriya: Welcome, everyone.
My name is Vanessa Farkas-Brahmakshatriya. I am a volunteer with the Canadian Centre for Men and Families, Alberta. And we are here with Charles Fair of Fair Legal and his assistant, Melanie Seneviratne.
Charles Fair has been practicing law for over 30 years and founded Fair Legal because he's passionate about helping others, ensuring that their rights are protected, and that they are treated fairly.
Fair Legal deals with family and civil litigation matters. Charles is generously volunteering his time with CCMF Alberta to deliver monthly webinars on topics of common concern to the population that we aim to serve. In other words, men struggling due to intimate relationship breakdown and turmoil.
At CCMF Alberta, we are committed to meeting men where they're at so that they can feel heard and validated and have conversations that matter to them. We help equip men to manage stressful situations, rebuild their lives after relationships fail, and stay connected with children. We also recognize that providing mental health support for men leads to optimal parenting outcomes, a reduction in family violence, and lower rates of suicide.
This is an educational offering. It is not legal advice. If you have questions for Charles, please send them via the chat to Melanie Seneviratne, not directly to Charles. If you send them directly to Charles, they won't get answered. Melanie will read them out loud for Charles to answer during the question period.
And if you need additional supports for your mental health as you navigate your legal challenges, here is a link to the programs page on our website, which I'm just dropping in the chat now.
And with that, I will turn it over to Charles.
Charles Fair: Great. Super. Thank you, Vanessa. It's always a pleasure to help out the CCMF. And I just wanted to second what Vanessa was saying. This isn't legal advice, but hopefully you'll get enough guidance here that, especially if you are trying to represent yourself, you'll get some indication as to where to go for some resources. And that's what we're doing tonight is talking all about the Practice Notes.
So, without further ado, there's quite a few, there's ten that we're going to cover. And several of them we are going to cover in more depth later on in upcoming seminars. We've got some co-hosts, co-presenters, to help out with those ones. But I'll talk a bit more about that as we go.
So, just a little quote here. So one of the first orders of business is really to talk about what the purpose of Family Law Practice Notes, and what they are. So there are detailed instructions and rules. They complement the Alberta Rules of Court. And they are, I'm going to say, mandatory. However, there are exemptions or modifications that are possible.
They contain directions and forms. And so it's a little bit difficult sometimes, and we'll show you this in a few moments, that there are forms in the Practice Notes and there are forms on other places on the Court's website. And I'll just show you how to navigate that a little bit. Then there are requirements and restrictions for various things that you have to do and which you are not allowed to do. There's deadlines for doing things - for getting things done - and filed with the Court and served on other parties. And then there are some consequences for non-compliance, which we'll talk about as well.
Their purpose is to improve outcomes for families, and I think that's - if you can bear that in mind, that's probably the number one purpose of all of them, although some of them are to provide options for out of court resolutions.
The theory is that, if parents can come to a resolution without the assistance of the Court, there's probably going to be a better outcome for the family, because a judge will never be able to know your children or the party's children as well as the parties do.
The rules also are aimed to improve the efficient use of court resources, and that's so that the Courts aren't spending a lot of time reviewing material that is not relevant to the decision that they have to make. And that, in turn, allows the Court to more efficiently arrive at a better outcome for families.
So, Practice Note 1. Practice Note 1, I think, has been around since July of 2015. So there's quite a bit of experience with this. Most people have probably already heard about it. This is the mandatory Parenting After Separation Course. It is intended to help parents, give them some education about how to meet the needs of your children. It will provide some various conflict resolution options - so a little bit of discussion about the legal system. And, if you can't reach agreement, how you engage with the legal system. And there is a link to information on that.
It's a free course, it's done online, and you get a certificate on the end of it, and that certificate must be filed with the Court before you can bring an application regarding children. Which makes a lot of sense. Let's, hopefully, all start with a better educational basis. And there's a lot of good resources in the Parenting After Separation Course.
So that's Practice Note 1. Practice Note 2 talks about Family Law Chambers and Special Chambers.
Now, what I'm going to do here, so I'm going to just change this screen to - let me see if I can get this right here. Because we put together a package and the package, we'll put it in the link towards the end of the seminar, and, as of yesterday, these are all of the Practice Notes, the Family Law Practice Notes. And the reason why I thought, well, this is useful here, because I just want to draw your attention to this so when you get it, take a look at this tipsheet for parties because this has some of the same information that we're talking about. And, so, here's an important thing. Length of Application.
So I'll just go back here to my screen, and let me see if we can do that.
So regular Family Law Chambers. Applications that are 20 minutes or less. So if you think a judge can hear your pitch in, maybe, 10 minutes or less, give the other side an opportunity to talk, less than 10 minutes, and then the judge has some questions, and the judge makes a decision. All of that has to take place in 20 minutes. So judges are not going to want to do major decisions in 20 minutes or less. So that's not used for change of custody or substantial changes to parenting or more than six months of retroactive support.
There's rules that are set out in the the Practice Notes that talk about page limits for the application materials and the supporting affidavits that you need.
Then there are Special Chambers, Special Family Chambers. So that's for longer applications. And Special Chambers applications can last, literally, from one hour to several days. Most of them are done in, say, an afternoon. So a two-hour or a four-hour special hearing. Sometimes you'll get an hour if it's not that - well, it's a little bit complicated - but will take more than 20 minutes but less than an hour. But most of them are between two and four hours.
And, again, that there are supporting - there's the application and the supporting affidavits that you need. And then there's these things called concise letters that adds to the the difficulty of these, but they are supposedly helpful to getting those issues before the Court.
Now, I'm going to go back to the Practice Note here so you can get an idea of the filing deadline. So you see here there's an application that, once you start it, there's a triggering date, then things have to be filed within two weeks, otherwise the application will be struck. See paragraph 52.
You can obviously see there's lots of paragraphs here.
So, then there's four weeks after the triggering date, in other words, two weeks after the first affidavit, then there's a respondent's affidavit is due, and then you see it gets more complicated if you've got third parties. And then there's this concise letter which is due nine weeks after the triggering date.
What's interesting about all of this process is that you pretty much have to be ready to go, or figure you can be ready to go, within two weeks of the decision to go to a Special. So that avoids the problem that can happen under the old system, which was, everything was due working backwards from your Special date, and then, inevitably, things happen, and you can't get your materials done, and then the date is wasted and has to be adjourned, and that sort of thing. So a lot of these rules are designed to keep things moving.
You'll see that, aside from the application being struck, if you meet that deadline, if you miss these other ones, then there's cost consequences and some of those cost consequences can even be applied to the lawyers personally. Not that I like to say that, but hey, that's what's there.
All right, so that's in that tipsheet.
Then the consequences are set out here. Again, they are - this is, kind of, a summary of the most important aspects of this.
Okay, so, very, very briefly, that's when you get into court. Then you want to know what do I have to do to get there. There is a lot of rules here. And it would be nice if it was a little easier to understand. There's references to the Rules of Court. And there's a little bit of legal jargon in here, unfortunately. So it's not really easy.
But I wanted to point out some other stuff here. That there are page limits. The applicant only gets eight pages. Then the respondent gets another eight pages. And then there's a reply affidavit.
I wanted to just say something about these affidavits. You know, you could say, well, you know, we can really squeeze in things by making a small print and changing the margins. Well, look at. Look at this. It says following requirements. Has to be on eight and a half to eleven paper with one inch margins, twelve point font, Times New Roman, 1.
5 line spacing, single sided. In other words, you can't cheat by changing the margins and shrinking the font. So they're intended to make sure that people are fairly concise with their, their materials. Then so the other thing that people will do is they'll say, Oh, I can't fit all of the, I want to, I've got so much information.
I want the Court to know so many facts. What I have to do is attach them as, I know we'll attach them as exhibits. Cause you'll notice these page limits only account for the affidavit, but not the exhibits. So it's excluding exhibits there. Well, then it says here exhibits. They must be relevant material and not repetitive materials already on the Court file.
So no, you don't attach other affidavits and court orders and things like that. There's a page limit. They must not exceed 40 pages. You have to number them. You have to put in a table of contents here. And the, now, here it says here, Exhibits must be supportive only, and cannot provide further narrative, or to be used to extend affidavit page limits.
The Court may award costs against a party who includes non-relevant and extraneous documents as exhibits. Then it says, subject to paragraph 37, the Court will not consider evidence that is not contained in an affidavit or statement. The Court will not consider evidence contained in additional affidavits that are not permitted by this Practice Note. The Court may not consider hearsay evidence contained in letters or unsworn statements authored by third parties that are appended to affidavits.
The rules really are strict here. So you can't, say, put in a some kind of letter from a third party and attach it as an exhibit if it is hearsay evidence. Okay?
Unfortunately that rule does seem to get broken a fair bit, but you never know what judge you're going to get, and some judges are going to be crankier about it than other judges. My rule of thumb is, if I've got a client who's swearing an affidavit, the expectation is that the person swearing the affidavit in front of me is telling the truth. So I shouldn't have to add an attachment or an exhibit to prove what my client is saying. Especially if it's a fact that the other side is not likely going to contest or dispute. Why waste that page limit with just getting supporting documents?
Sometimes exhibits are important if you want to point out something that the other side has done or said and that may be relevant.
So that's, kind of, an overview of the affidavits and applications - sorry, the application and affidavits that get used. It goes on and on, so we're not going to - here, I'll just briefly talk about the Concise Letter when you go to a Special. You have to provide a concise summary of the party's position. And here's various things here. You have to have citation of relevant cases, estimate the time required for that party's argument, et cetera.
Okay. And then there's things that you have to attach to the Concise Letter. And then you have to put a table of contents. All of this is to make it really easy for the judge to read your materials. And think about it, if you want your judge to pay attention to you, you want to make it easy for the judge to understand what it is that you're saying. And so follow these rules and the judge will be happy. Don't follow the rules and the judge will be cranky. The judge might rule in your favor if he or she is cranky, but they might just as easily go the other way.
And sometimes you'll see that, you know, they really don't want to commit an injustice, so they'll just order costs if they're really cranky. But, you know what, you're better off, just follow the rules.
Unfortunately, there's a lot of them, and they're going to seem like, oh my god, this is anal retentive. Or, you know, just way too - you know, somebody's really obsessed about these rules. But remember, this is about making the process as efficient as possible for the Court. And you want to make it fair. You know, if one party sticks within the rules and does their 8 page affidavit and the other side comes back with 20 pages, well, that's not fair. And so then the reply to that's got to be 30 pages, and now there's no way the judge can read it all. So there's a good reason why the materials have to be fairly straightforward and concise.
And that's a good spot where, if you're having trouble deciding what's important, or what kinds of things a judge really wants to know, get some legal advice. If you're trying to represent yourself, draft up the materials, take it to a lawyer and say, what do you think? Is this going to work? Does this comply with the rules? Does this have the evidence that the judge is likely going to want to hear?
Okay. That's kind of a technical rule. It's important. It helps the Courts, as I say, get decisions made efficiently and fairly to both parties.
Now, Practice Note 3. This is Family Law Conferences. And the Family Law Conferences, these are a set of - this is intended to promote resolution. That's what I say the primary rule is there. Under Rule 4.11 of the Rules of Court, there is a provision for judges to hold case conferences with the parties, and there is a settlement component, which means that you've got - usually they're scheduled for about an hour - and the judge will help you reach agreement on some issues, and whether or not there's an agreement, the judge can also make some direction regarding how the case is to proceed. So there's a case management component to it.
Case Conference is not just oral. You have to prepare summary forms in advance. And the parties have to exchange them and file them with the Court. And here's an important part of that summary, is that it has to contain a settlement offer on at least part of what's in dispute. You don't have to offer everything, and sometimes that's not reasonable to do, especially if one of the issues is financial matters. You don't want to be doing a settlement if you don't have proper disclosure from the other side. So that's where the case management component of that Case Conference can come in, where the judge can say, look, we need to get better disclosure, and it's got to be done by such and such a date, and here's a better procedure for that.
Then there's the King's Bench Child Support Resolution Program. People who've been through the program would know that there's a similar thing called a - excuse me, my slide is out of order here - this was formerly called the DRO Program, or Dispute Resolution Office, now it's got a little bit more clarity in the title. It's the King's Bench Child Support Resolution Program. It is mandatory attendance to go to this if you've got child support, unless you get an exemption. The attendance is ordered after you're in Family Docket Court, or Courts can sometimes order the parties to go into the resolution program.
And a judge is going to do that if they think, you know, these issues are not particularly complex. Just needs a little bit of digging into the information. Let's give a resolution program a shot at this. Saves up the judge's time and court time. A little more efficient. And it's a way of promoting resolution.
Again, there's a requirement to file and exchange financial disclosure between the parties.
Now there's my slide.
The Voluntary Attendance. You can do the same thing. And you can go to the - you can start the King's Bench Child Support Resolution Program before going to Family Docket Court. And if you go to the Family Docket Court, you can also choose to go to the resolution program after Family Docket Court and what the the program will do is also provide a report.
So, what I didn't mention is, we were talking about the Special Chambers and regular chambers, those procedures, since COVID, are subject to a prior triage court called the Family Docket Court, which we've mentioned here. And, unfortunately, there isn't a Practice Note that talks about the Family Docket Court, so that's why, technically, I didn't discuss it. But you can see that it's referenced here. We're going to come back to that in a bit.
Now, Practice Note 5, this is a little different. I've categorized this one as something intended to reach better outcomes. And this is not a lot of rules on here. This is about a procedure. So, first off, if somebody's going to make an allegation that there's sexual abuse going on, or has gone on, and there's an application, or there's going to be an application, regarding parenting, the first thing that has to happen is there has to be notice given to the Court about this, and the presumption is that the party making this allegation would also be filing a report to the police and children's services.
And then there's an investigation that has mandatory involvement of Children's Services, and there's a Child Protection Screening process, and then there is various reports that are done. And then, in the Practice Note, there are rules that really deal with the privacy interests. And then, lastly, there's a Mandatory Case Conference, which - I think the idea here is, if the parties are able to have a Case Conference, a case conference is not open to the public, it's a way that there might be a resolution with less overall trauma to the family. Regardless of whether the allegations - the strength of the allegation, or the seriousness of the offense or anything like that - I think this is a way to take what can be a very difficult situation and perhaps get to a resolution that's going to be a better outcome for the family.
Then there is a case management option as well. Like normal Case Conferences, the judge can make rules regarding how the case is handled. Just because there's an investigation, just because there's a report, doesn't mean that, say, for example, somebody who is accused of sexual abuse, doesn't mean they have to accept the results of that report. And so the Courts recognize that sometimes there are false allegations. Sometimes investigations aren't done properly or as well as they could be. And that's why there's an opportunity to really push for a better or a more fuller investigation through a trial process.
So Practice Note 5 is going to be the topic of our next - I believe it's our next one - in October or November, I can't remember which one it is. We're going to have a co-presenter talking about Practice Note 5, but, more generally, on allegations of sexual abuse and Family Law disputes. So, then we're hopefully going to be having somebody from a forensic psychology firm. And that will provide some helpful information.
Melanie Seneviratne: I just wanted to interrupt for a quick second. It's Melanie. And just to say that we - just so everybody knows - we will be having the next three sessions, so October, November and January, we will be having guest speakers for all three of those to specifically talk about, like Charles said, Practice Note 5, 7, and 8. And I believe the next one, in October, is Practice Note 7.
Charles Fair: Okay, yeah, I just, yeah, that's right. Exactly right. I wasn't sure when I said, I thought, oh, wait a second. I think maybe I did it the other way around.
Practice Note 7 is, as we'll see, is probably the more common of those three, 5, 7, and 8.
So, now Practice Note 6 is International Child Abduction under The Hague Convention. This replaces the Practice Note 2 regarding the Family Law Regular and Special Applications. Because - my things are all out of order here - there's a designated central authority, that's the language that comes out of The Hague Convention, which is an international treaty between dozens of countries.
The process is started in either country. In other words, it started either in the country where the child has been abducted to, or it started in the home country. And then there's various procedures that are set out in The Hague Convention because you're going to be triggering essentially investigations in both countries. And enforcement proceedings and stuff.
So the International Child Abduction Act is how The Hague Convention is set out in Alberta, and The Hague Convention is actually attached to that act.
Now, Practice Note 7. This is, again, this is one of the Practice Notes that is designed to get better outcomes for families. And this is interventions by parenting experts.
So, the purpose of a Practice Note 7 intervention is to assist the Court by identifying the specific challenges that might be facing a family. And this is where you can put stuff into eight-page affidavits or five-page affidavits, but the issues might be just more difficult and more challenging than really can be dealt with in affidavit evidence. Maybe there needs to be psychological testing. Maybe there needs to be assessment of whether there's, you know, substance abuse issues, that sort of thing.
And one of the goals of the practice note seven is to facilitate resolution by the parties. Again, a resolution that can be reached by the parents without the intervention of the Court is better. And sometimes getting an expert involved can help the parents go, you know, maybe we do need to be doing differently.
So, there's two kinds of interventions. There's Evaluative Interventions. And the most common of these is the Voice of the Child, which is the views and the needs of the child. And I'm going to say that you can read the Practice Note 7 on this, but what you need to be aware of is there are varying different views on this. I've had a judge say that he wanted to know what a 5-year-old thought. In other cases ,the Court and the parties have agreed that a 13-year-old, it's not so much the voice of the child that was needed, but rather a triage, which is investigate, figure out what's going on, and make recommendations. Maybe we can solve the problem with some family counseling. Maybe we can make some recommendations of further evaluations that need to be done.
Some of the Evaluative Interventions can involve psychological evaluations of various family members. It doesn't necessarily have to be all family members. It could be the parents. It could be the children.
Then there are therapeutic interventions - let's see if I can get these ones lined up properly - which can include counseling for all or some family members, assistance in developing parenting plans, and this one is important especially when there's been parental alienation that, with the assistance of a parenting expert, the parent and the child can be hopefully reunified.
So, Practice Note 7s are fairly common, that's why we're getting our next - next month's webinar - we'll get one of these parenting experts in as my co-presenter, and we'll talk about these issues in more depth.
Now, Practice Note 8. This is a Child Custody Parenting Evaluation. That's a much more comprehensive family assessment. It's where the Practice Note 7 isn't appropriate for whatever reason. Or the Practice Note 7 has been tried and it's been unsuccessful. Unfortunately, if a Practice Note 7 expert has been involved, they are not permitted to do the Practice Note 8 evaluation. There's a lot of good sound reasons for that. But, unfortunately, what that means is that the co the overall cost of the whole Practice Note 7 and 8 is higher than it would be otherwise. But Practice Note 7 doesn't get to a satisfactory resolution then let's throw some more money at it in time and put together a Practice Note 8 intervention. It results to a report to the Court. And the parenting expert may testify in court, may be compellable to testify in court, and may be cross-examined by the party that doesn't agree. Or perhaps even by both parties, for that matter. If a party doesn't agree with a part of the report or all of the report, they can cross-examine the expert.
So, that's Practice Note 8.
Now, Practice Note 9. And, again, Practice Note 8, I think that one is scheduled for January, and we'll have a a parenting expert come in and talk about how to get ready for that kind of assessment as well.
So, Practice Note 9 is Intake Resolution and Caseflow Management. And I must say I'm not as familiar with this because it seems to be that it's mandatory for self-represented applicants, and it's optional for parties represented by a lawyer, and lawyers are supposed to talk about this with their clients, and it doesn't seem to happen very much. But I think there are cases where, even if there is a lawyer involved, it probably makes sense to engage with this process.
Again, this is similar to a Case Conference. It's not with a judge. The idea is somebody is going to be helping the parties, assisting with resolution options. They can refer the parties to mediation, counseling, judicial dispute resolution.
The Caseflow Conference is not a confidential process, and so it can result in the Court knowing what's going on there.
So there's some pros and cons to that process because of the non-confidentiality. But, again, the idea here is, particularly if somebody's self-represented, maybe there's a way to help the parties get to resolution without having to use up a lot of Court resources.
Then the last Practice Note, Practice Note 10, is access to court files and Family Law Proceedings. And this is not really the same as the other Practice Notes, but ,with the age of the internet and social media, it has become of increasing concern that a lot of the materials that are filed in Family Law Proceedings have a lot of very personal information sometimes, especially now with mandatory filing of financial documents. The financial information, if released to some stranger, could result in identity theft and financial losses.
However, the Courts in general are public courts. We don't have secret courts. The idea is our judicial system has to be open and accessible to the public. That's one way, in a free and democratic society, that we make sure that the Courts are doing their job properly. And typically that's a role of the media. The media, if they get particular interest in a file, they can apply to get access.
I'm just going to put up my bullets here.
So the access to Family Law files is restricted mostly to parties and their lawyers. The other group that does have access is government employees in the course of their work.
I mean it kind of makes sense. Court employees and various others have certain situations where they should be accessing court records.
Here's the point. The point is balance with principles of open court.
Now, so if a non-party wants to get access to a Family Law court file, they have to make an application and give notice to the parties of that application, and then the parties have an opportunity to oppose that application. But I wanted to point out that if no objection is made to the application, then access is granted.
And this is an important Practice Note to think about, or really the privacy issue is one to think about. My practice is, when i'm filing or when i'm having to file financial documents with the Court, we do a lot to redact out the identifying information like bank account numbers and addresses, that sort of thing. We have to leave enough information that the Court can be satisfied that the document really does relate to the party in question, but we take out enough that it can't be used by somebody trying to engage in identity theft.
And that's because of this last thing, if there's no objection, the access is granted. And so I'm not confident that, especially when there's self-represented parties or, you know, people aren't paying attention to this, people move, they don't get notice, and then their materials somehow get released to some family member, or a stranger, somebody who's just interested, and that just doesn't seem right. So it's just something to bear in mind when filing materials. That if, for example, you're dealing with really sensitive materials, then you can ask for a court order that they be sealed. And sometimes that's important.
You know, children get older. A child might go on, apply to the Court to get access to the court file, and it might be very upsetting for them to read the things that the parents have been saying about them, or about each other for that matter. So, in that situation, it may be appropriate to seal the court file altogether, making it harder to get to it.
The Courts don't like sealing files completely because it goes against that principle of an open court.
So, before we open it up to questions, though, I'm going to go back to the document here that we prepared. And that is because, at the top of it, there is a link here to where you find the Family Practice Notes, and this is important, additional information, notices, and announcements may be found at this area. And I'm going to point out how difficult this is even for lawyers.
So I'm going to go over to the Court's website now. So this is where the Family Practice Notes are. It's at that link that I provided to you.
Once you get in, it looks like it's fairly easy. You go on the left here, you'll see under "family", you click on "family", and then you see the Family Law forms, and they're all listed here. Family Practice Notes. There's information about Family Docket Court.
You go down here to Practice Note 9. Just going to go back here to Practice Note 9.
This one, this is an interesting one. This is the Intake Resolution and Caseflow Management. You'll notice that that is Calgary and Red Deer, effective January 3rd, 2017.
I'm going to go back to this other page here. Here we go.
Well, I'll go to the link that's in the other -
This is the Notices to the Profession. This is the other link that's at the top of the package that I put together as kind of a convenience thing.
So you see here, Notices to the Profession and Public.
Notice to the Profession in Public. Suspension of Family Practice Note 9. Well, unfortunately, you've got to actually open it up and read it, and when you do that, you see that it actually isn't suspended, it's only suspended in Red Deer. So, I hate to say it, but you've got to read stuff really carefully. There's all sorts of stuff here that can be - you'll see here, family applications with written argument.
I wish it was easier to navigate this stuff. It's unfortunately - here we go, revised Family Practice Note 4. There's some information on.
That this is dealing with the Child Support Resolution Program that we talked about. But there's some more information here. It gives you a little bit more information that might be useful, or give you some better idea on how to navigate through that stuff.
So, there we go. Any questions?
Melanie Seneviratne: Yes. We have a couple of questions.
Charles Fair: Okay.
Vanessa Farkas-Brahmakshatriya: May I [inaudible] before you begin, Melanie. I just want to say to everyone here, if you're feeling overwhelmed by the sheer volume of information that's come your way, because this is a highly technical subject, please remember that all of you will receive a link through - if you registered for this webinar, you will receive a link to the video when it becomes available. Or you could just go to YouTube to the Fair Legal YouTube channel and subscribe.
So there will be a chance to review all this information.
Melanie Seneviratne: Thanks, Vanessa. And just so everybody knows, I was trying to attach the document here that Charles was referring to, but for some reason I can't get it to attach.
So maybe we can, I don't know if it's possible, Vanessa, that you guys can maybe send out, you know, the documents to the participants today that registered, or we can potentially make it available, you know, with the link.
Charles Fair: I'm going to be able to do it. Oh, I see, we need to upload it into Sharepoint first.
Melanie Seneviratne: Right. So, anyways, we'll come back to that.
Charles Fair: Okay.
Melanie Seneviratne: But, so let's get to some questions here because we've only got a few minutes here.
So the first question was - sorry, where did it go - in regards to a Practice Note 5 Case Conference, is that the same as an EICC?
Charles Fair: I'm going to say no, because it's - no, because it's under the sexual allegations issue.
It is a good question as to whether the Rule of 4.10 Conferences are the same as the EICC. And that one's a little bit of a head scratcher and I'll tell you why, is because I was in Family Docket Court, and one of the options in Family Docket Court is to have the case move over to an EICC. And so for those of you who don't know what an EICC is, it's an Early Intervention Case Conference.
So the Courts recognize that, gosh, if we can get in there early and have a judge take a look at this case, hear what the parties have to say, we might be able to save everybody a whole lot of grief and encourage a resolution earlier on.
Once you get involved in the litigation, you know, you start to get entrenched in positions, and then it might seem harder to get to a resolution. So the Court said, well, let's do an Early Intervention Case Conference. And so they set up a separate schedule for the Early Intervention Case Conferences, but the rule was that both parties had to agree. And then the Courts will say, okay, we'll send you over to Early Intervention.
The same rules apply, though, is that once you're into the Early Intervention process, then you have to prepare the case summary in advance, and it has that mandatory settlement offer at the end. By the way, it doesn't have to be a reasonable offer, it just has to be an offer. So, you know, obviously, you know, if you want to get a resolution, you want to make a good faith effort here.
So, the forms are the same. it has both a settlement component, it also has a case management component, but it's required on consent, and it's scheduled differently.
And, at the time that this particular discussion was held, the schedule for the EICC Case Conferences was further out than the schedule for the Rule 4.10 Conferences. But the Rule 4.10 Case Conferences didn't require the consent of both parties, so the judge ordered us into the Case Conference. And, as I said, the forms are all exactly the same, and then when we're in the case conference the judge referred to us as being in an EICC.
So, yeah, I hope this is not - this is a public presentation. It is just, kind of, a little bit of an irony that, I suppose, the only difference between an EICC and a Rule 4.10 Case Conference is the EICC is sooner than a Rule 4.10 Case Conference. So that's my thoughts on that.
And I would think that - to answer the question about the Practice Note 5 Case Conference - it's gonna run similar in the sense that it has a settlement component and a case management component. The issues are going to be a lot more sensitive. And I suspect that you're going to get a different - they're not just going to pick any judge, they're going to pick a judge who's got some experience and is willing to take on those kind of cases.
Melanie Seneviratne: Okay, next question. Do arbitrators need to follow these Notes? Are these Notes considered Rules of Law?
Charles Fair: They don't need to be followed by arbitrators. They are complementary to Rules of Law, so it's probably not fair to say that they are quite Rules of Law, but they're complementary to Rules of Court, and judges, and the courts, have the authority to to make these Practice Notes. The advantage of arbitration is that the arbitrator and the parties can agree on whatever kind of procedure they want.
And, in fact, with these Practice Notes, it is possible for the parties to agree on different dates, for example. So, rather than having the two weeks right after the trigger date, they can say, well, let's set the first filing date, you know, two months from now, rather than two weeks.
So, they are rules, but they are more flexible than the Rules of Court, and an arbitrator can ignore them completely.
Melanie Seneviratne: Okay. Next question is: At what age does a Practice Note 7 become ineffective?
Charles Fair: I'm going to leave that question for the expert because I think that it - in general, my feeling is that it would depend on the nature of the Practice Note 7. The scope of it. As we noted before, there's both an evaluative aspect and a therapeutic aspect.
Oftentimes, people are told that a child's views will be paid attention to at age 12. Well, what if a 13 or 14 year old's views are influenced by a very strong desire to protect a parent that has a serious alcohol problem. One would hope that the person doing the evaluation is not going to just say, oh, you want to stay with Mom or you want to stay with Dad, then just simply saying that. So I don't think the answer is a simple answer. That's why we're going to devote a whole session to it with an expert. Because it's a good question.
Melanie Seneviratne: Okay. Sounds good. So that is all the time we have today for questions. So Charles or Vanessa, if you just wanted to wrap up.
Charles Fair: Yeah, and if people want to have more questions there is a process. You can contact CCMF and line up a consultation with my office.
Or, if we get enough questions of the same sort - that's the questions are really specific to your own case. If you've got good burning questions about some of these Practice Notes, put them together, we can maybe do a, you know, more in-depth one on Practice Note 2, for example. Or we could maybe do a split the Practice Note 7 into - or Practice Note 8, for that matter, into a third one dealing with, say, parenting plans, how to work through parenting plans and get an expert to help with that.
So, yeah, feel free to keep adding in questions and we'll - there's tons of material to cover and we're happy to keep doing this.
Vanessa Farkas-Brahmakshatriya: So, did we come to an answer, Melanie, about this package, this document package, for people?
Melanie Seneviratne: Yeah, maybe what we'll do is, I'll send it through to you guys and then you can get it out to the people that registered for this webinar.
Vanessa Farkas-Brahmakshatriya: Okay, great, that's what I thought would work too.
And do watch, everybody, for the recording of this webinar.
And I would encourage you to just subscribe to Fair Legal's YouTube channel.
Melanie Seneviratne: Also as soon as the links go out to, like, when you receive the links, as well as in our YouTube, you'd see them, but we also do post them on our website.
So if you're more - some people are more of a reader than a watcher - then you can go to the website and you can actually read through, like, literally the whole transcripts of the sessions as well.
Vanessa Farkas-Brahmakshatriya: Oh, that's, that's good to know. I wasn't aware of that.
Melanie Seneviratne: Yeah, we do both.
Vanessa Farkas-Brahmakshatriya: Okay. Brilliant.
Charles Fair: The transcripts are - I don't have the time or the inclination to edit them, so may be a little raw. I say that just in case there's any lawyers out there. It is what it is. Okay? These are live sessions!
Vanessa Farkas-Brahmakshatriya: Thanks for that.
Okay. Thank you so much, Charles, now, as always. Charles joins us every month with a different topic. It's always very content-rich and very informative.
So thank you for your time. Melanie, thank you for your time. And please visit CCMFAlberta.ca - all of you - to find out what other supports are available as you navigate your legal challenges.
Good evening everyone.
Charles Fair: Okay, thank you.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.